'Google Spain case': court decision privatises the public sphere

The EU institutions suffer from a public sphere deficit. A condition even self-diagnosed by their own EU representatives and also intensely debated by many scholars in the late 1990s1. Nearly ten years later, in 2007, Claus Haugaard Sørensen, Director General of the DG Communication at the EU Commission assumed the emergence of a European publicness with the further development of the internet.

And then, two weeks ago, the European Court of Justice (ECJ) thwarted Mr. Sørensen’s plans: the court determined that lawful public data may remain public, but not too public within Europe. In the lawsuit against Google Spain filed by Mr Mario Costeja González, the court decided in favour of the suitor. The search machine has “to adopt the measures necessary to withdraw personal data relating to Mr Costeja González from its index and to prevent access to the data in the future”.

These data were personal data and at the same time lawfully published – in this particular case they even had to be published. Hence, although Mr Costeja González requested it, they could not be deleted. In short: it was public data. Theoretically. However, the court decided they shouldn’t be too public and constricted its access to the domain name of the newspaper. The publicness of the data should not be amplified by a search engine. They publicness should be restricted. I.e. the publicness should be not too big. At least not in Europe.

One of the particularities of publicness lies in its lines of demarcation: the boundaries are definable with respect to the individual and the private sphere. But it has no limits in the other direction: publicness has no maximal boundaries. Public data finds its sense in making information accessible to a public – not to a restricted public. A restricted publicness, in itself, is a contradiction. The size of a lawfully generated publicness by the press cannot be restrained legally.

Fundamental rights denied by court

The first paragraph in Article 11 of the Charter of Fundamental Rights of the European Union2, to which the court’s decision refers indirectly, warrants the freedom of expression and “information and ideas without interference by public authority and regardless of frontiers”. Furthermore, the second paragraph determines that “the freedom and pluralism of the media shall be respected”.

The court denies all three points. When it states that the rights to privacy (Art. 7) and data protection (Art. 8) “override, as a general rule” the public interest (Para. 81), it places lawful public data under the supervision of a public authority. For Art. 8 (right to protection of personal data) entitles data protection authorities to monitor the compliance of this new primacy of the right to data protection over the right to freedom of speech. Not only with respect to private data, but now also with respect to public data. The court also sets publicness a virtual-territorial boundary – since the data is not deleted, only the indexing by Google and hence, its reachability. And, finally, the freedom of the media is restricted, as they are not allowed to extend their range of influence via search engine optimisation. The public cannot access lawful public data outside the press domain.

The release of the court’s decision is unintentionally humorous since it constitutes a performative contradiction: in contrast to e.g., the publication of judicial decisions in Germany, the ECJ does not blacken the name – and has not done so in this lawsuit either, although the name of the suitor is not relevant to the case. From now on Mr Costeja González will be permanently traceable in connection with the court’s release and the underlying facts of the case. Or, the court’s decision will not be accessible via Google’s search machine if Mr Costeja González also requests the deletion of the indexing of his personal data.

Rank order among fundamental rights?

The member states of the EU interpret the right to freedom of expression and information autonomously. The right to freedom of speech and press freedom is also regulated nationally. It was not the competence of the ECJ, but of the corresponding national courts, to ascertain to what extent other fundamental rights rightfully restricted the fundamental right of freedom of expression or information. This casts a different light on the court’s decision: is the court securing a right to have a say in matters of freedom of expression? Is it merely weighing in on one interest among others? Does it follow the premise of equal footing of all fundamental rights or is the court generating a rank order among fundamental rights?

Date of expiry in public data

Newspapers do not write for the shelves: they write and seek publicness. Also, archives preserve the public interest. Digitalisation and indexing via search engines let newspapers and archives reach a broader publicness across all geographical boundaries – not least due to search engine optimisation.

To stamp a date of expiry in public data – as the court has done in this case – means privatising the public sphere. At the same time the boundaries between the private and public erode over time. Private data may be of public interest over the years, as the love letters of couples in the 19th century in gender studies or in history. A duty to forget public events or data is not new but well known in peace-agreements in the ancient world3. Notwithstanding all official oblivion-commandments were outrun by history, art or literature. Liberal democracies inverted this command once they understood that coerced oblivion is incompatible with the liberal concept of democracy – with some exceptions like the amnesty or the limitation of liability in time.

Privacy and publicness depend on each other. They balance the role of the individual as a human being and as part of society. Lately we have been reminded that privacy needs to be protected from publicness. However, we have forgotten that publicness needs to be protected from privatisation. And so has the European Court of Justice.